The Government Just Said It's Unconstitutional to Do This to the Homeless


Over half a million people are homeless on any given night in the United States. Among them, close to a third spent the night outside of shelters, often exposed to the elements under bridges or on park benches. 

Due to laws passed explicitly to prevent the homeless from sleeping in these public spaces, many of them are targeted by the police, forced to move and sometimes given criminal citations. 

But the federal government has just indicated that those laws could be unconstitutional.

The Department of Justice has filed a statement of interest in a case in Boise, Idaho, according to the Washington Post, saying that preventing the homeless from sleeping outside should be considered a violation of Eighth Amendment protections, which forbids cruel and unusual punishment.

The filing argues ordinances that prevent those without homes from sleeping in public effectively criminalize homelessness itself. Here's the key argument, as the Washington Post points out:

When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. Sleeping is a life-sustaining activity — i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.

Why it matters: The statement is good news for advocates for protecting the homeless, as it should have sway with courts and is a precedent of sorts for civil rights law. The DOJ rarely files these statements, and it's a formal way of stating the government's view on a disputed legal issue. 

The filing comes amid a rash of laws passed in recent years by cities across the U.S. that make it harder for the homeless to live in public. While the homeless population has been declining quite steadily for many years, advocates for the homeless have documented a spike in measures designed to discourage their public presence.

The laws target everything from the legality of setting up a temporary overnight encampment to panhandling to sitting down on sidewalks. According to a National Coalition for the Homeless report, between 2013 and 2014, 21 cities successfully restricted the practice of food-sharing with the homeless, with even more attempting to do so but failing.

National Coalition for the Homeless

The war on homelessness can feel a bit like the war on drugs. Both seek to end a constant in human behavior by criminalizing them, and ultimately do little, if anything, to address the root cause of those behaviors.  

But there is an alternative path, and in fact both the federal government and some local governments have been taking measures towards it: building permanent housing for the homeless and providing them with support to address the problems that uprooted them in the first place. Initiatives to house the homeless are the main reason the homeless population continued to decline even as the U.S. experienced its worst economy since the Great depression. Perhaps the new DOJ ruling will add some more moral weight to the case for helping the homeless rather than ostracizing them even further.

h/t Washington Post